Moving to Florida changes more than your address. It changes the legal system that will govern your estate when you die or become unable to manage your own affairs. The wills, trusts and powers of attorney you signed in another state may still work, but they were written for different rules, and Florida has some distinctive ones of its own.
This guide explains what new Florida residents should review in their estate plans and which questions to put to a Florida estate planning attorney. It is general information, not legal advice, and the details depend on your circumstances.
Why a move is the moment to review your plan
Estate plans age quickly. Families grow, assets change and laws are amended. A change of state adds another reason to look again.
First, the documents may not work as smoothly in Florida as they did at home. Execution formalities, witness requirements and the way powers of attorney are treated all differ from state to state.
Second, Florida has features that can improve a plan, including no state estate or inheritance tax and strong homestead protections. A plan written in a state with a different tax regime may no longer be the best fit.
Third, an updated Florida plan is useful evidence of your intention to make Florida your permanent home, which can matter if your former state ever examines your residency.
The core documents
Most estate plans rest on a handful of documents. Each has Florida-specific points worth knowing.
A will
A will states who receives your property and who is in charge of carrying out your wishes. In Florida, a will generally must be signed in front of two witnesses. Most attorneys also add a self-proving affidavit before a notary, which makes the will easier to admit to probate.
Florida generally recognizes wills that were validly signed in another state, so an out-of-state will is not automatically void. But it is still wise to have a Florida attorney review it, since terms and references may need updating.
A revocable living trust
Many Florida residents use a revocable living trust to manage assets during life and pass them on without going through probate. You can change or cancel it at any time while you have capacity.
A trust works only for assets that are actually in it, so retitling accounts and property is as important as signing the document. A “pour-over” will usually accompanies a trust to catch anything left outside it.
A durable power of attorney
This document lets someone you trust manage your finances if you cannot. Florida has specific rules. A power of attorney must be signed in front of two witnesses and acknowledged before a notary, and since 2011 Florida has not recognized new “springing” powers of attorney that take effect only upon a future event.
Powers of attorney signed in other states are often honored in Florida, but banks and other institutions can be cautious about out-of-state forms. Many attorneys recommend signing a fresh Florida document.
Health care directives
These include a designation of a health care surrogate, who can make medical decisions for you, and a living will, which states your wishes about end-of-life care. Florida has its own forms and witness rules, so it is sensible to replace your old documents with Florida versions.
Florida features worth understanding
No state estate or inheritance tax
Florida does not impose a state estate or inheritance tax. That is a significant attraction for people leaving states that do. Federal estate and gift taxes still apply, though a substantial exemption means they affect only larger estates. The federal exemption amount is set by law and adjusted over time, so confirm the current figure with your adviser.
Homestead rules at death
Florida’s homestead rules also affect what happens to your home when you die. If you are survived by a spouse or a minor child, Florida law limits your freedom to leave your homestead property to someone else. The home may pass automatically in specific ways, and a will alone may not override that.
This surprises many new residents, particularly in blended families. If you have a second spouse and children from a prior marriage, ask your attorney how the rules apply to your home and how to plan around them.
The spousal elective share
A surviving spouse in Florida has a right to claim a share of the deceased spouse’s estate, known as the elective share, regardless of what the will says. The share is calculated as a percentage of a broadly defined estate, and it can include some assets held in trust. Spouses can waive the right in a written agreement, and an attorney can advise whether that suits your situation.
How married couples hold property
Florida recognizes tenancy by the entirety for married couples, a form of joint ownership that can offer protection from the creditors of just one spouse. It can also pass property automatically to the survivor. Whether it suits you depends on your goals, so discuss it with counsel before changing how title is held.
Community property trusts
Florida also allows spouses to create a special type of trust that treats assets as community property, which can have tax advantages when one spouse dies, particularly for people who moved from or hold assets in other states. It is a specialist tool and not right for everyone, so it is worth asking whether it applies to you.
Asset protection
Florida offers strong protections for homesteads and certain retirement accounts and insurance products. However, it does not allow a person to create a trust for their own benefit that is protected from their own creditors in the way that some other states do. If asset protection is an important goal, seek advice from an attorney who specializes in it.
Beyond the legal documents
Documents are only part of an estate plan. These items often matter just as much:
- Beneficiary designations. Retirement accounts and life insurance pass according to the named beneficiary, not your will. Check each one after the move.
- Account titling. Make sure accounts and property are held in the way your plan assumes, including any trust.
- Digital assets. Florida has rules about fiduciary access to online accounts. Record where your accounts are and who should manage them.
- Guardians for minor children. Confirm that your nominated guardians are still the right choice.
- Letters and instructions. A written guide to your accounts, advisers and wishes can save your family considerable time.
A practical checklist
- Gather your current documents. Wills, trusts, powers of attorney, health care directives, beneficiary forms and a list of assets.
- Choose a Florida estate planning attorney. Ask about experience with clients who have moved from your former state.
- Review and update. Have the attorney confirm what still works and what should be replaced.
- Sign the new documents with proper formalities. Use the witnesses and notary the law requires.
- Retitle assets. Move accounts and property into the trust where appropriate.
- Update beneficiaries. Review every account that names one.
- Tell your family and your fiduciaries. Make sure the people named know their roles and where the documents are kept.
- Schedule a review. Revisit the plan every few years and after major life events.
Common mistakes to avoid
- Assuming an old out-of-state plan is fine without a Florida review.
- Creating a trust and never transferring assets into it.
- Forgetting that homestead restrictions can override a will.
- Leaving beneficiary designations unchanged after a divorce, remarriage or move.
- Using do-it-yourself forms for complex or blended-family situations.
- Not telling anyone where the documents are.
Questions to ask your attorney
- Which of my existing documents still work in Florida, and which should be replaced?
- Would a revocable trust suit me, and how do I make sure it is funded properly?
- How do Florida’s homestead and elective share rules affect my family?
- Do I have enough exposure to federal estate tax to need more advanced planning?
- Do I hold assets in other states that need separate attention?
- How should I title my accounts and property as a married couple?
- Who should I name as trustee, agent and health care surrogate, and what happens if they cannot serve?
Frequently asked questions
Is my out-of-state will still valid in Florida? Often yes, if it was validly signed where you made it. A Florida attorney should still review it, since the terms may need to change.
Does Florida have an estate tax? No state estate or inheritance tax applies, though federal estate and gift taxes can.
Do I need a trust? Not everyone does. A trust can help avoid probate and manage assets, but a will and powers of attorney suffice in some cases. An attorney can advise.
Can I leave my home to anyone I like? Not always. If you have a spouse or minor child, Florida homestead rules may limit your options.
How often should I update my plan? Review it every few years and after major events such as a marriage, divorce, birth, death, move or significant change in assets.
The bottom line
A move to Florida is a natural point to bring your estate plan up to date. The state offers real advantages, and a few unusual rules, and the best results come from a plan written with both in mind.
Start by gathering your documents, find a good Florida estate planning attorney, and ask the questions above. A few hours of attention now can spare your family a great deal of difficulty later.